Australian Story

Road To Nowhere Part Two - Transcript

PROGRAM TRANSCRIPT: Monday, 13 February , 2012

CAROLINE JONES, PRESENTER: Hello I'm Caroline Jones, and tonight the conclusion of our story about a woman taking on powerful institutions and changing the way things are done. Her name is Di Gilcrist. Eight years ago, her husband went out for a bike ride and never returned. He was struck by a four-wheel drive driven by prominent lawyer, Eugene McGee. Mr McGee failed to stop. He admitted he’d been drinking but police never tested him for blood alcohol. His eventual penalty was a fine, and suspension of his license. The case has galvanised public opinion in South Australia. We start with this recap...

CHLOE HUMPHREY, DAUGHTER: Dad came in and said he was going to go for a ride.

DI GILCRIST: I said, you know, "Ride safely, love you." That was the last thing I said to him.

TONY ZISIMOU, WITNESS: Basically, what I seen was a four wheel drive, driving at a hell of a speed. Crossing the white lines, one side to the other, driving like a frigging idiot.

DI GILCRIST: ...and he just said to me it had been a single car hit-run.

LEE JELOSCEK, CHANNEL 7: Within minutes I'd had a phone call from an officer, who'd said, "There's a bit more to this. It's a high profile person.

PETER HUMPHRIES, DI GILCRIST'S LAWYER: By the time the police apprehended Eugene McGee, six hours had passed. The police didn't do any blood alcohol test.

REPORTER: The court heard McGee is such a well known local barrister, the DPP can't find anyone to prosecute him.

DI GILCRIST: I had a meeting with the director of public prosecutions, Paul Rofe. He said, "We could have got it to trial if the coppers hadn't stuffed things up."

(End of recap)

DI GILCRIST: I was a sole parent, which was something I was getting my head around, and it was the night times that were the empty times for me. That was when the hollowness and, I guess, the torture would start. My laptop became my confidant and best friend. Email became my weapon of choice. I would email anybody who I thought should be aware of what was going on.

MICHAEL O'CONNELL, VICTIMS' RIGHTS COMMISSIONER: Di was one of the most prolific writers that I have ever had to deal with. In fact there were two, three hundred, maybe more, emails. I'm sure there were many people who found her challenging. Unlike many victims, Di wasn’t prepared to be relegated to being just a passive person, the person sitting on the sidelines.

DI GILCRIST: It was like we got to the top of the mountain when we actually got it to go to trial. Eugene McGee was charged with causing death by dangerous driving, and failing to stop and render assistance. And he pled not guilty to the cause death by dangerous driving, but he did plead guilty to the failing to stop and render assistance.

(Excerpt from Channel 7 News - 2005)REPORTER: The Crown Prosecutor, Teresa Anderson, said McGee knew exactly what he was doing on that fateful day near Freeling in November 2003...(End of excerpt)

KAREN PENFOLD, FRIEND: One of the things that was really concerning to us during that trial was that the jury didn’t know that Eugene McGee had particular expertise in traffic offences.

(Excerpt from Channel 7 News - 2005)REPORTER: ...but the court also heard McGee had been fined for speeding six times since 1997(End of excerpt)

DI GILCRIST: It felt very much like I was alone, and Eugene McGee had a revolving door of barristers at his disposal. Every time we appear in court, it’s yet another well known Queen’s Counsel representing him, so it’s pretty much the David and Goliath scenario.

(Excerpt from Channel 7 News - 2005)REPORTER: McGee's attorney, Grant Algie, says there was no evidence presented during the trial to prove his client was either speeding or under the influence of alcohol at the time of the crash.(End of excerpt)

DI GILCRIST: The thing for the trial for me was that it would actually be the open book, so to speak; that we could actually discover what had happened on that night. But what we were to learn was really quite disturbing.

EUGENE MCGEE: My account of what occurred on the night of the crash is covered in the court transcript. My understanding is that Mr Algie, who was my barrister at that trial and conducted the trial, is going to speak to you in relation to the trial and the conduct, and I don’t wish to make any further statement in relation to that.

GRANT ALGIE, EUGENE MCGEE'S BARRISTER: It was what might be fairly regarded as an unremarkable Sunday, where he’d left Adelaide, driven up to Kapunda - which is in the Barossa - to join his brother to take his mother out for Sunday lunch. An unremarkable beginning to a quite extraordinary tragic day.

PETER HUMPHRIES, DI GILCRIST'S LAWYER: There was subsequently evidence obtained via his credit card statement which indicated that there had been three bottles of wine and one stubby of beer purchased during the course of the afternoon.

DI GILCRIST: Eugene took his mother home, had a cup of tea and then headed home.

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: I think Eugene's evidence was he was driving at about 100 kilometres an hour, from memory. He was approaching a car that was in front of him, with a view to passing it. He pulled out to look to see if it was safe to pass. Another car was oncoming so he moved back in. Obviously the car in front had moved out a little bit to pass Mr Humphrey, the cyclist, and in a split second the tragic accident happened. He had this horrid vision - of Mr Humphrey hitting the windscreen of the car.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: As far as anyone can tell, it’s probable that Ian died immediately upon impact.

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: He described from my memory that, after he’d seen that, that he just kept going. He just couldn’t stop.

DI GILCRIST: He actually said during his evidence that one of the first thoughts that came into his mind was for his career. He worried about being arrested, and the impact on his career.

KAREN PENFOLD, FRIEND: That was the part that made us so disgusted and angry.

CHLOE HUMPHREY, DAUGHTER: You think, well, why? Why didn’t they stop, why couldn’t they have helped? Why is my dad dead and the guy who killed him not dead? How is that fair for anybody?

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: Why did he not stop? I wonder how many times he’s asked himself that. How can you not regret the fact that you’re involved, even innocently involved, in an event that led to the death of another human being? How can you not regret that? And of course, of course, he looks at himself and wishes he’d stopped. But you can’t turn back time.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: After the impact, it appears that Mr McGee drove, via a sideroad, back to Kapunda. He waited some time at a quarry near Kapunda, eventually returning to his mother’s house where he met up with his brother. Eventually Craig - his brother - drove Eugene McGee, in Craig's vehicle I think, to Adelaide where he was then able to meet up with his legal advisers.

DI GILCRIST: We have a period of almost six hours that Eugene McGee had been absent from the police's presence. There is no doubt in my mind that Eugene McGee's actions were very orchestrated and they were planned to the last minute that night. I believe they were acting with the intent of evading police for as long as possible, and reducing any chance there was of Eugene McGee being tested for alcohol.

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: The likelihood was that at the time of driving, which was at about... I think the accident was about ten past five, the likelihood is his blood alcohol level was zero.

DI GILCRIST: Eugene McGee's knowledge of the law put him in a privileged position. He knew the penalty for avoiding police was far less than it would be if he was confronted or handed himself over to the police and was found to have a positive blood alcohol reading.

BEN CHESHIRE, AUSTRALIAN STORY PRODUCER: Was he following a strategy as advised by his lawyer?

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: He wasn’t trying to evade the police or follow any strategy. Once he got into Adelaide and spoke to his lawyer, his lawyer contacted the police.

(Excerpt from ABC News - 2005)REPORTER: Professor McFarlane said McGee told him of traumatic incidents in his past career as a police officer where he had to deal with disfigured bodies(End of excerpt)

DI GILCRIST: It was in the last days of the trial, the defence produced a psychiatrist’s report, suggesting that McGee had failed to stop and render assistance because he was suffering a "dissociative state." It suggested he’d had a traumatic life as a police officer.

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: And most recently he was the solicitor for one of the Snowtown murderers, which I think it’s fair to say was one of the most grotesque cases of depraved humanity that you’re likely to come upon.

(Excerpt from ABC News - 1999)REPORTER: Eight bodies were found in six barrels in a disused bank vault in Snowtown, north of Adelaide.(End of excerpt)

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: The combined effect of those exposures over the years essentially gave rise to a post-traumatic stress disorder or dissociative state when this accident occurred, such that he couldn’t essentially bring himself to stop.

DI GILCRIST: I guess it seemed very, very convenient. To my knowledge he had not been diagnosed or treated for post-traumatic stress prior to him killing Ian.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: Well it was described by some - and it is a term I think I agree with - as a bit of an ambush.

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: Once we knew where the psychiatric evidence was going for the defence, we should have obtained... or have been prompt in obtaining a second opinion, and my recollection is we struggled to do that.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: So the end result was that the defence evidence on that point went unchallenged.

(Excerpt from Channel 7 News - 2005)REPORTER: Good evening. First tonight, hit-run lawyer Eugene McGee has left court a free man after escaping a jail term for killing a cyclist. Instead, he’s been fined and banned from driving, a sentence that’s been met with outrage, shock and disbelief. (End of excerpt)

DI GILCRIST: The verdict was not guilty of death by dangerous driving. He was found guilty of driving without due care.

NICK XENOPHON, SA SENATOR: There was this absolute sense of disbelief, of anger, of despair that this could happen. That someone responsible for killing a man, leaving him by the side of the road, failing to render assistance, just got off with a fine.

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: (addressing rally) As Attorney General, I want to apologize to Di Gilcrist and the Humphrey family for the outcome of our system in the case of Eugene McGee.

(Crowd applauds)

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: In my view the verdict was entirely proper, and I must say it was hardly a surprising verdict to anybody who was actually involved in the trial and heard the evidence.

MICHAEL O’CONNELL, VICTIMS’ RIGHTS COMMISSIONER: The two brothers who witnessed Eugene McGee's driving before the collision happened were not called as witnesses.

TONY ZISIMOU, WITNESS: Basically, what I seen was a four wheel drive - I think it was a dark bluish colour - yeah, driving at a hell of a speed. Basically, he was driving all over the road...

JOHN ZISIMOU, WITNESS: I remember watching the news report. The reason that a harsh conviction hadn’t gone forward was there was lacking witnesses and lacking evidence.

(Excerpt from ABC News - 2005)REPORTER: Mr Algie said it wasn’t dangerous driving. There was, he said, no speed, no erratic or bizarre behaviour...(End of excerpt)

JOHN ZISIMOU, WITNESS: ...which I found astounding since we were told our evidence was crucial, and no doubt we would be summoned to court and to testify.

TONY ZISIMOU, WITNESS: I found out the trial had taken place and that we weren’t called, and I couldn’t understand why we weren’t brought forward to say our bit.

NICK XENOPHON, SA SENATOR: If the Zisimou brothers gave evidence at the trial there could well have been a very different outcome.

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: The reason they weren’t called to trial is because in the statements that they’d given to the police, they had nothing of any relevance to add to the causation of this accident.

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: Yes there was pressure on the Government to do something - from the public and especially through the Independent MP Nick Xenophon, who was representing Di Gilcrist.

MICHAEL O’CONNELL, VICTIMS’ RIGHTS COMMISSIONER: The Government decided to hold a Royal Commission to examine how the case was investigated, how it was prosecuted; but also to address the accusation that the prosecution was ambushed.

(Excerpt from ABC News - September 2005)REPORTER: Commissioner Greg James wanted to see for himself where McGee ran down cyclist Ian Humphrey.(End of excerpt)

PETER HUMPHRIES, DI GILCRIST’S LAWYER: The Royal Commissioner found that the police investigation had been inappropriately conducted in a number of ways. One of the consequences was an apparent lack of urgency in arresting Mr McGee.

TONY HARRISON, ASST COMMISSIONER, SA POLICE: I have a very strong view in relation to whether police should have located him earlier, and there is many people suggested we should have. It was Mr McGee who actually put himself outside of the reach of police. It wasn’t the police doing nothing. And I think that point is very, very important to make. He took action himself to put himself out of the reach of police.

(Excerpt from ABC News - May 2005)REPORTER: Mr Zisimou said, when interviewed by Sergeant Edward Hassel, he told him McGee was "driving like a f-ing idiot."(End of excerpt)

PETER HUMPHRIES, DI GILCRIST’S LAWYER: The commissioner thought that none of the investigating officers had properly understood the potential importance of the Zisimou brothers evidence.

(Excerpt from Channel 7 News - 2005)REPORTER: They were told they’d be key witnesses but they were never called to testify.(End of excerpt)

PETER HUMPHRIES, DI GILCRIST’S LAWYER: Sergeant Hassel was criticised for not having made proper notes of his conversations with the Zisimou brothers, and that was the reasons why they weren’t called at trial, because the DPP’s office weren’t properly informed of what they might have been able to say.

TONY HARRISON, ASST COMMISSIONER, SA POLICE: I think with the wisdom of hindsight, we do acknowledge now that if we had our time again we would do things differently, from a number of aspects.

CHRIS TENNANT, SYDNEY UNIVERSITY: I was approached by the Royal Commission to review the psychiatric evidence that had been given at the original trial - that Mr McGee in all probability had suffered a post-trauma disorder, following his involvement with the Snowtown massacres. It was my view that no such defence existed. One other, very senior, professor of psychiatry was also involved in reviewing the evidence and we both had come to the same conclusion: that this evidence was really not credible. I’ve never been more personally outraged about what I personally see as being a, in the common lingo, a mistrial, a travesty of the justice system.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: The commissioner found that the prosecution should have called expert psychiatric evidence to offer an alternative view to that expressed by Professor McFarlane, but at the trial, one opinion was all the jury got.

CHRIS TENNANT, SYDNEY UNIVERSITY: Psychiatric evidence was presented late in the piece in the trial, the prosecution chooses not to seek an adjournment for other evidence. I think it was a total botch-up.

SANDY MCFARLANE, MCGEE'S PSYCHIATRIST: I think it would have been extremely helpful if there’d been a 2nd psychiatric report obtained for the first trial, because in forensic matters, I think expert opinion always needs to be very carefully tested.

MICHAEL O’CONNELL, VICTIMS’ RIGHTS COMMISSIONER: What was presented in court was in fact a sanitised truth. It was a truth that left the jury with no alternative but to find him not guilty of the most serious offence that he had been charged.

CAPTION: The Royal Commission found no evidence of favouritism or corruption. It made numerous recommendations including police retraining, more pretrial disclosure of expert evidence, and increased penalties for death by dangerous driving and fleeing an accident.

DI GILCRIST: There were two reports produced from the Royal Commission, and one of them remains secret to this day. Quite bizarre.

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: Well because it is a closed report, I am reluctant to comment on its contents. It was referred to the Director of Public Prosecutions.

DI GILCRIST: That secret second report was the one which led to the new charges being placed against Eugene and Craig McGee for conspiring to pervert the course of justice.

MICHAEL O’CONNELL, VICTIMS’ RIGHTS COMMISSIONER: That Eugene and Craig McGee had entered into an agreement to try and prevent Eugene McGee from being apprehended, and as a consequence the police were not able to conduct a thorough investigation, and therefore justice could not be done.

DI GILCRIST: Four and half years later it takes to get to trial. Every time that the defence tried to have the charges dismissed, or Eugene McGee would plead "not guilty," it was essentially like Ian being killed all over again. It was essentially him saying, "I did nothing wrong, it’s okay, I shouldn’t be persecuted like this."

CHLOE HUMPHREY, DAUGHTER: It was really hard for me. I loved my dad so much, it was like ripping a piece of my heart out. It’s really sad when... and I know it happens a lot of people don’t like their dads, well I'm just like "At least you’ve got one, at least they are there for you, you’re lucky."

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: It is in my view quite an extraordinary thing that an individual who stands trial and is acquitted before a jury of his peers... further different charges were then laid with respect to the same events on Kapunda Road that night. That in my view was extraordinary and lamentable.

(Excerpt from ABC News - 2010)REPORTER: But District Court Judge Peter Herriman has found them not guilty, ruling prosecutors didn’t prove a conspiracy.(End of excerpt)

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: Both Mr McGee and his brother were found not guilty of all charges.

(Excerpt from ABC News - 2010)REPORTER: The judge accepted the brothers avoided police after the fatal crash, but he found there may have been other reasons for their behaviour.(End of excerpt)

DI GILCRIST: Here we were, two trials and a Royal Commission later and nothing had changed. Everything was still the same. It was still the system saying, "He did nothing wrong, it’s okay." As far as criminal proceedings go, that was the end of the road - there was nowhere else to go. The only hurdle I was yet still jumping was that with the Legal Practitioners Conduct Board.

(Excerpt from 891 ABC Adelaide - 2010)REPORTER: Di Gilcrist-Humphrey has complained to the Legal Practitioners Conduct Board that Mr McGee's decision to leave the scene of the fatal accident amounted to unprofessional conduct.(End of excerpt)

NICK XENOPHON, SA SENATOR: For a whole range of reasons, including public confidence in the legal profession, I don’t think Mr McGee should be practicing. He should at the very least be suspended for a significant period of time.

DI GILCRIST: I was advised some months later that the Board saw no reason why Eugene McGee should not be allowed to continue to practice.

(Excerpt from ABC News - 2011)REPORTER: It accepted the evidence of psychiatrist Sandy McFarlane that as a result of previous trauma, "...there was a reasonable possibility that McGee was incapable of stopping immediately after the fatal collision."(End of excerpt)

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: The fact that Eugene McGee hadn’t stopped after the accident in no way impacts upon his capacity to undertake his work as a lawyer.

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: From my opinion, I think the public of South Australia is angry about the Eugene McGee case, because they think it’s an example of the lawyers acting as a club and protecting one of their own. I think they’ve got a pretty strong case.

(Excerpt from Channel 7 News - 2011)PROTESTER: And there seems to be one law for a lawyer who’s got mates in the cops, and another law for the common people, and that definitely needs to be rectified.(End of excerpt)

DI GILCRIST: I felt, after the first trial and after the Royal Commission and even still now to this day, that Eugene McGee has got away scot free, so to speak.

NICK XENOPHON, SA SENATOR: This case highlights how badly the legal system can let people down. This family’s been let down, the family of Ian Humphrey have been let down fundamentally by the legal system at every turn.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: Whatever the result of a properly run jury trial, you can live with it. But this just miscarried from the beginning.

GRANT ALGIE, EUGENE MCGEE’S BARRISTER: The injustice is that the matter was not allowed to rest in April/May 2005, and the people involved were not permitted to put it behind them and move forward.

SANDY MCFARLANE, MCGEE’S PSYCHIATRIST: What people don’t realise is that Mr McGee had himself been the victim of a hit-and-run accident. He was riding his bicycle to university when he was hit by an elderly woman. He sustained a significant back injury but chose not to prosecute her. I believe that accident was a significant factor in influencing how he responded to the collision with Mr Humphrey.

EUGENE MCGEE: It’s been an unmitigated disaster for everybody. Certainly for my family, clearly for Mr Humphrey's family and for all people associated with Mr Humphreys. It’s a tragedy for everybody involved, and the effects are ongoing for everybody involved.

PETER HUMPHRIES, DI GILCRIST’S LAWYER: I have some sympathy for Eugene McGee - what he’s been subjected to over the last eight years. My guess is that Eugene McGee, given his time again, would probably prefer to have stopped and been prosecuted in the normal way with perhaps a different outcome at that level.

EUGENE MCGEE: Can I take this opportunity to extend my sympathies to the family for their loss. I am sorry for what occurred, and to apologise to them for my reaction to the accident.

DI GILCRIST: I feel an utter sense of failure, because everybody at every level has said that Eugene McGee essentially didn’t do anything wrong. The reality is I don’t like where we are after these eight years, but I don’t think I would have liked myself very much if I wouldn’t have tried. The reality is that I can say to my kids that I tried. I have been able to find a new partner, and he’s been happy enough to take all of this and me and the kids on. He’s not going to be part of the program because this is Ian's story. It’s not our story, it’s not his story, it’s Ian's story.

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: For all the sadness and frustration of the drama around the Eugene McGee case, real good has come of it by recasting the law so it makes sense to the public, and I think leads to more just outcomes. Leaving the scene of a collision was treated as a comparatively minor matter before the Eugene McGee case.

BEN CHESHIRE, AUSTRALIAN STORY PRODUCER: And now?

MICHAEL ATKINSON, SA ATTORNEY GENERAL 2003-2010: And now it’s a far more serious matter.

CHLOE HUMPHREY, DAUGHTER: I miss him every day. There’s not a day that I wish he wasn’t here. Because he’s my dad and I loved him and I wish I got to know him better.

END CAPTIONS:South Australia's new Attorney-General has decided against referring the case to the Lawyers’ Disciplinary Tribunal.

Australian Story unsuccessfully sought access to the secret closed report of the Royal Commission under freedom of information laws.